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In re Estate of Thomas

Superior Court of New Jersey, Appellate Division

May 22, 2013

IN THE MATTER OF THE ESTATE OF JACK D. THOMAS, DECEASED.

Submitted March 5, 1013

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-441-11.

Law Offices of Linda Ballan, L.L.C., attorneys for appellant Dorothy Davis (Linda Ballan, of counsel and on the brief; Paul DePetris, on the brief).

Hanlon Niemann, P.C., attorneys for respondents Rhonda Duty, Marcella Williams, Janelle Simms (a/k/a Lynn Foxworth), Sidney Riley, Gregory Thomas, Delma Thompson, Willard Arlo Riley, Erwin Darnell Coleman, Lois Scroggins, Denise Coleman, Estate of Patsy Woods (deceased), Richard Riley, and Tomeeka Coleman (Lauren D. Bercik, on the joint brief).

Lois D. Sutton, L.L.C., attorney for respondent James O. Thomas, Administrator of the Estate (Lois D. Sutton, on the joint brief).

Sellar Richardson, P.C., attorneys for respondent Western Surety Company, join in the brief of respondents.

Before Judges Fisher, Alvarez and St. John.

OPINION

FISHER, P.J.A.D.

In this appeal, we review an order that summarily dismissed plaintiff Dorothy Davis's complaint, which sought a declaratory judgment that she is decedent's only child and sole heir, and which also sought vacation of the grant of letters of administration to defendant James Thomas, decedent's sole surviving brother. In addition, we consider the judge's denial of plaintiff's motion for disinterment of decedent's remains that was sought by plaintiff for the purpose of establishing her claim that decedent was her father.

The Chancery judge determined that plaintiff's complaint was time-barred because it was filed four months beyond the six-month time-bar established by Rule 4:85-1. We reverse because Rule 4:85-1 has no application to an action establishing the proper line of intestate succession. And, although Rule 4:85-1 is germane to plaintiff's action to vacate the grant of letters of administration, the six-month time-bar is not intractable and may be extended, through application of Rule 4:50-1(f), in exceptional circumstances, which are present here. We also vacate the order denying disinterment but remand for further consideration of that issue following an evidentiary hearing.

The record establishes that Jack D. Thomas died intestate on January 24, 2010. James Thomas, decedent's only surviving brother, applied nearly a year later to be appointed the intestate estate's administrator. An order granting him letters of administration was entered on January 19, 2011. Because James claimed in his application that decedent had no children, plaintiff was neither notified of James's application nor served with the order granting letters of administration.

On December 14, 2011, plaintiff filed a verified complaint. On the return date of an order to show cause, the Chancery judge chose not to rule on the merits but instead directed a brief period of discovery and invited plaintiff's motion for disinterment of decedent's remains. Discovery was conducted and the motion for disinterment was filed, as were cross-motions for summary judgment seeking dismissal on the ground that plaintiff's complaint was untimely. On the return date, the Chancery judge granted the cross-motions for dismissal and, although not necessary to her disposition of the action, the judge, recognizing the likelihood of an appeal, addressed the merits of the disinterment motion and denied that motion as well.

Davis appeals, seeking our review of the judge's rulings on both the timeliness of the ...


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